1. Who Are You Screening?

The Equal Employment Opportunity Commission (EEOC) recommends a policy that says all prospective employees will be screened after a conditional offer is made and all current employees will be screened at predetermined intervals. That way, all candidates and employees are treated fairly and consistently.

Applying your policy company-wide is a best practice. But that doesn’t mean the same employment screening package is right for every employee.

Many employers choose different report packages based on the role the job candidate will play once hired. For example, you might construct your policy to require employment and education verification for all senior management roles, but not for certain entry-level roles.

Similarly, you might choose to require employment credit checks for senior management or for other positions that have access to significant amounts of money (if allowed by your local laws), but not for positions where credit history is less relevant.

Many employers in construction, manufacturing, health care and other industries choose to conduct pre-employment drug screening or periodic drug screening to reduce accidents and promote a healthy workplace.

Obviously, if you’re considering candidates for roles that involves driving, it makes sense to check their driving history. If they won’t be driving on the job, motor vehicle violations are much less relevant to the position.

Note: Three states – Washington, Pennsylvania, and New Hampshire – require special consent forms when checking motor vehicle records.

2. How Will Criminal Records Affect Your Hiring Decisions?

The EEOC recommends that you consider only arrests and convictions that are directly related to the responsibilities of the job.

Be careful when considering arrest information, though. Because minority populations are arrested at disproportionate rates, using a blanket policy to reject candidates based on arrests could be considered indirectly discriminatory.

The safest approach is to avoid policies in which a type of crime always leads to rejection. Instead, create a policy to consider all adverse information returned along with these three factors:

The nature of the position sought

The nature of the crime

The amount of time since the conviction occurred

Then allow candidates to provide context about the adverse information that might lead to rejection or termination, and take their statements into consideration.

The EEOC has stated that this process will establish a “business necessity and job relatedness” defense to discrimination claims. It’s also fair and rational to get both sides of the story – and it can keep qualified candidates in your talent pool.

To find the most relevant information, every search should start with a Social Security number (SSN) trace. This step confirms that the SSN provided is valid, and reveals recent counties of residence.

The most accurate criminal records exist at the county level, so checking for records in recent counties of residence makes sense.

In certain industries or certain positions, you might also want to search for federal court records. For example, a Federal Criminal Databases Search looks for convictions for tax evasion, fraud, embezzlement, identity theft, interstate trafficking, and kidnapping, all of which are prosecuted in federal court.

3. When Will You Run The Background Check?

Timing can vary depending on your needs and preferences.

Under federal law, an employer can conduct employment screening at any point after getting the candidate’s consent. However, make sure to check ban-the-box laws to determine if you’re in a city, county, and/or state that restricts the timing.

If you’re not covered by a ban-the-box law, it makes sense to screen only the final few candidates or only those who have received a conditional offer. This way, you balance the costs with the benefits of background check information in the hiring context.

You’ll need to decide if you’d like to screen current employees throughout the course of employment. If you do, you must include an “evergreen clause” in the background check consent form that notifies employees and gets consent for periodic screening throughout their employment with your company.

In California, however, evergreen clauses are prohibited by state law. You'd need to get each employee's consent every time you run another background check.

Note: Drug screenings should never be conducted prior to a conditional offer of employment.

If you need to check those records, you can add these searches to any GoodHire employment screening packages. If you're not interested in those searches, you can spare yourself the expense.

Of course, before you update or create any screening policy, make sure to review it with your legal counsel.

You already know that employment screening can help make sure you’re seeing a clear picture of your job candidates. Now you know what questions to ask to help you tailor your screening policy to your needs.

Elizabeth McLean

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At GoodHire, Elizabeth McLean monitors all things FCRA and EEOC. That means she follows new legislation and court decisions and advises the company on processes that follow compliance best practices. Elizabeth earned an advanced FCRA certification from NAPBS in 2015.

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